EU bangs the Brexit negotiating table (but stays in the room)

Brussels launches legal action against UK over its Internal Market bill breaching the Withdrawal Agreement, but the road is long and uncertain.

Stop, in the name of the law!

That was the Commission President Ursula von der Leyen’s message to the U.K. on Thursday as she announced the EU would initiate legal proceedings to prevent London from trying to use domestic legislation to override aspects of the Brexit Withdrawal Agreement signed last year.

It comes in response to the U.K. ignoring the EU’s demand for changes to its Internal Market Bill, which seeks to give ministers powers to change parts of the divorce deal — and break international law — subject to U.K. parliamentary approval.

But while the EU barked by announcing the infringement procedure, it made a calculated, strategic choice not to bite by walking away from the negotiating table on the future relationship.

That response wasn’t an easy call. The EU’s chief negotiator Michel Barnier has said repeatedly that the implementation of the Withdrawal Agreement is a prerequisite for any trade agreement and future political relationship deal. Brussels insists the Withdrawal Agreement has the legal force of an international treaty and cannot be changed.

The British legislation has infuriated the EU, both on substance, because of London’s plans to create an internal market that unilaterally undermines parts of the Withdrawal Agreement, and on style, given the belligerent tones in which the U.K. announced its intentions and refusal to back down.

Von der Leyen jabbed at the U.K. over the bill in her State of the European Union speech last month, quoting former Prime Minister Margaret Thatcher’s insistence that the U.K. fulfills its agreements.

She slammed London again on Thursday, calling the legislation “a breach of the obligation of good faith,” adding that the EU would uphold its side of accord. “Besides this, the Commission will continue to work hard towards a full and timely implementation of the Withdrawal Agreement. We stand by our commitments.”

Boris Johnson’s government, however, has not been deterred. Commission Vice President Maroš Šefčovič had warned earlier this week that the EU wouldn’t hesitate to use the legal remedies in the Withdrawal Agreement if the U.K. refused to amend the legislation. U.K. Cabinet Office Minister Michael Gove responded that the legislation would remain in play as it currently stands. This week, thanks to a government compromise with Tory rebels, House of Commons approved the bill, leaving von der Leyen with no choice but to take some sort of action.

“We had invited our British friends to remove the problematic parts of their draft Internal Market Bill by the end of September,” von der Leyen said. “The deadline lapsed yesterday. The problematic provisions have not been removed, therefore this morning, the Commission has decided to send a letter of formal notice to the U.K. government. This is the first step in an infringement procedure.”

The choice for legal action is more about buying time than about actual punishment. And it is also about preventing London from blaming Brussels in the event that the two sides fail to reach a deal.

The legal road for the EU is long and uncertain, with no indication when such a process would be completed in the courts. That leaves Brussels plenty of time to reach a political agreement, while at the same time holding some kind of threat alive.

The offending Internal Market Bill is also not expected to complete its passage through the U.K. parliament until at least December (it must now go through the House of Lords), again giving both sides time to negotiate a political outcome.

So while Brussels insists the bill has led to a serious breach of trust, it has not entirely given up on the possibility the talks might succeed. In that sense, von der Leyen’s announcement reflected a reserve of hope and a shred, at least, of remaining good will.

Requests from lawmakers such as Bernd Lange, the chair of the European Parliament’s trade committee, to pause negotiations until the U.K. makes clear whether it intends to honor its commitments were dismissed by the Commission and the Council to avoid “playing Johnson’s blame game,” as one EU official put it. Blowing up the negotiations, especially at this critical late stage, would make it far too easy for Johnson to point the finger at Brussels for failure — something senior EU leaders have worked to avoid at every stage of the Brexit negotiations.

But while both sides may have bought some time, a solution is still nowhere in sight as the two sides remain far apart on many crucial issues.

A U.K. government spokesperson today stuck to the British position. “We have clearly set out our reasons for introducing the measures related to the Northern Ireland Protocol. We need to create a legal safety net to protect the integrity of the U.K.’s internal market, ensure ministers can always deliver on their obligations to Northern Ireland and protect the gains from the peace process.”

In Brussels, EU countries have repeatedly made clear that the full implementation of the Withdrawal Agreement is a must for giving green light to a potential deal on the future relationship. French EU Minister Clément Beaune today reiterated that the EU would otherwise not ratify a trade agreement.

Likewise, the European Parliament, which must ratify any EU-U.K. deal, has also warned that “should the U.K. authorities breach — or threaten to breach – the Withdrawal Agreement … the European Parliament will, under no circumstances, ratify any agreement between the EU and the U.K.” Several MEPs reiterated that message on Thursday.

That means that even if both sides were to agree on a deal on the future relationship before the end of the transition period on December 31, they could still be heading toward a standoff on the Internal Market Bill, although its slow passage through the U.K. parliament does at least create some space for a resolution.

Charlie Cooper contributed reporting.